R. v. B.R.E., 2012 NSSC 253

SUPREME COURT OF NOVA SCOTIA Citation: R. v. B.R.E., 2012 NSSC 253 Date: 20120711 Docket: CRBWT. 352141 CRBWT. 351587 Registry: Bridgewater Between: B.R.E. Appellant v. Her Majesty the Queen Respondent - and - Between: Her Majesty the Queen Appellant v. B.R.E. Respondent Editorial Notice Identifying information has been removed from this electronic version of the judgment. Restriction on publication:

Section 486.4(1) of the Criminal Code . Judge: The Honourable Justice C. Richard Coughlan Heard: March 19, 2012 at Bridgewater, Nova Scotia

Written Decision: July 11, 2012 Counsel: C. Lloyd Tancock, for the Respondent/Appellant B.R.E., self represented Appellant/Respondent By the Court: [1] B.R.E. was convicted of committing a sexual assault and an assault on his wife, E.E. Mr. E. received an absolute dischargefor the offences. He appeals the convictions and sentence. The Crown appeals the sentence. [2] Mr. E.’s Notice of Appeal set out twelve grounds of appeal which are attached to this decision as an appendix. [3] The facts are as follows. B.R.E. and E.E. were married and resided together.

Their relationship was strained and they werenot occupying the same bedroom. On Sunday, June 14, 2009, E.E. was taking a shower. The water stopped flowing and E. E .wrappeda bath towel around herself and went to the basement as she thought there could be trouble with the water supply. B.R.E. was in thebasement. E.E. stood on a bench and reached up attempting to change the water filter. As she was reaching for the water filter, the towelmoved up her body. B.R.E. came toward her, touched her breast and put his mouth on her genitals. E.E. yelled, “No, No, No.” E.E. didnot consent to the activity.

E.E. got down off the bench and attempted to go upstairs. B.R.E. grabbed E.E. by her wrist preventing herfrom leaving so he could tell her he wanted to work on improving their marriage. After saying that, B.R.E. allowed E.E. to go upstairs. E.E. went upstairs to continue her shower. Later, E.E., B.R.E., and E.E.’s daughter attended church services. [4] The role of a

Summary Conviction Appeal Court was set out by Cromwell, J.A., as he then was, in giving the Court ofAppeal’s judgment in R. v. Nickerson (2000), 1999 NSCA 168 , 178 N.S.R. (2d) 189 at p. 191: “The scope of review of the trial court’s findings of fact by the

Summary Conviction Appeal Court is the same as on appeal againstconviction to the Court of Appeal in indictable offences: see ss. 822(1) and 686(1)(a)(

I) and R. v Gillis (1981), (NSCA), 45 N.S.R. (2d) 137; 86 A.P.R. 137; 60 C.C.C. (2d) 169 (C.A.), per Jones, J.A. at p. 176. Absent an error of law or a miscarriage ofjustice, the test to be applied by the

Summary Conviction Appeal Court is whether the findings of the trial judge are unreasonable orcannot be supported by the evidence. As stated by the Supreme Court of Canada in R. v. Burns (R.H.), (SCC), [1994] 1S.C.R. 656; 165 N.R. 374; 42 B.C.A.C. 161; 67 W.A.C. 161; 89 C.C.C. (3d) 193, at p. 657 [S.C.R.], the appeal court is entitled to reviewthe evidence at trial, re-examine and reweigh it, but only for the purpose of determining whether it is reasonably capable of supporting the trial judge’s conclusions. If it is, the

Summary Conviction Appeal Court is not entitled to substitute its view of theevidence for that of the trial judge. In short, a

summary conviction appeal on the record is an appeal; it is neither a simple review todetermine whether there was some evidence to support the trial judge’s conclusions nor a new trial on the transcript.” [5] The trial judge heard the evidence presented and made findings of fact which are supported by the evidence. Grounds one,two, three, ten and eleven are B.R.E. not accepting the trial judge’s findings of fact and are without merit. [6] In ground four, B.R.E. says the trial judge erred by failing to consider the application of the doctrine of de minimus. Thisground is without merit.

The trial judge found the essential elements of the offences were present. [7] In grounds five, six and nine B.R.E. is addressing the fact the Crown called the complainant to give rebuttal evidence in theapplication pursuant to

section 276 of the Criminal Code concerning previous sexual activity of the complainant and in the trial. B.R.E.was successful with the

section 276 application so there was no harm to him as a result of the Crown being allowed to recall thecomplainant. [8] In the trial itself, B.R.E. says the trial judge erred in allowing rebuttal evidence from the complainant concerning events

which took place the day before June 14, 2009. There are restrictions on the ability to call rebuttal evidence. In dealing with the issue,McIntyre, J., in giving the court’s judgement in R. v. Krause, (SCC), [1986] 2 S.C.R. 466 stated at paragraph 16: “The plaintiff or the Crown may be allowed to call evidence in rebuttal after completion of the defence case where the defence has raisedsome new matter or defence which the Crown has had no opportunity to deal with and which the Crown or the plaintiff could notreasonably have anticipated.

But rebuttal will not be permitted regarding matters which merely confirm or reinforce earlier evidenceadduced in the Crown’s case which could have been brought before the defence was made. It will be permitted only when it is necessaryto insure that at the end of the day each party will have had an equal opportunity to hear and respond to the full submissions of theother.” [9] In allowing the rebuttal evidence the trial judge ruled: “THE COURT: Thank you. I’ll allow you to call the evidence, Mr. Brown, since it was not evidence that was elicited from Ms.

E. ondirect examination and was not, in light of the evidence of Mr. E., and was not evidence that could have been anticipated by the Crown.” [10] In making the ruling the trial judge did not commit an error. B.R.E. was making an application to examine the complainantabout her previous sexual activity. That sexual activity was the subject of the rebutted evidence.

Until and unless B.R.E.’s application toexamine the complainant about her sexual activity was allowed it was not evidence which would have been anticipated by the Crown. [11] In ground seven, B.R.E. says the trial judge erred in not receiving in evidence an application for adoption filed by thecomplainant and B.R.E. dated December 17, 2009. The complainant was being cross-examined by counsel for B.R.E. about theapplication for adoption when the trial adjourned for the day. Prior to the resumption of the trial, B.R.E. dismissed his counsel andconducted the remainder of the trial by himself.

When the trial resumed, B.R.E. decided no further cross-examination of thecomplainant was necessary. It was B.R.E’s decision not to examine the complainant further about the application for adoption. Theground is without merit. [12] Ground eight concerns the application by the Crown to have counsel appointed to cross examine the complainant when B.R.E.began conducting the trial himself. There is no issue here. B.R.E. decided not to cross examine the complainant. [13] In ground twelve, B.R.E. says the trial judge erred in his

interpretation of R. v. W(D.) (SCC), [1991] 1 S.C.R.742. In reviewing the trial judge’s decision, I find he made no error in his

interpretation of the test. [14] The complainant did give evidence during B.R.E.’s application to permit evidence of the complainant’s sexual activity. Thatevidence was not entered into evidence in the trial. In the course of his decision, the trial judge stated: “E.E. was called by the Crown on rebuttal with respect to Mr. E.’s testimony concerning sexual conduct that occurred in the days leadingup to June 14th, 2010, I’m sorry, 2009. And E.E. denied that those things occurred during that time frame. She testified that some ofthose things are similar to things that had occurred between herself and Mr.

E. prior to June 14th, 2009, but many months prior to that,during the course of their marriage, during the course of the time that they were married to each other and their marriage was not understress or strain She testified that none of those things occurred in the time frame of a week or several days prior to June 14th, 2009.” [15] E.E. did testify on rebuttal in the trial that the sexual activity B.R.E. said occurred on June 13, 2009 did not happen that day asshe was in the Annapolis Valley and B.R.E. had the year wrong.

However, E.E. did not give evidence in the trial about other sexualencounters B.R.E. alleged occurred between Mr. and Ms. E. in the week before June 14, 2009. It appears from the above portion of thetrial judge’s decision , he did consider material which was not in evidence. In this, the judge was in error. However, when consideringall of the evidence and the trial judge’s decision as a whole, it is clear the error is an error of a minor nature having no impact on theverdict and no substantial wrong or miscarriage of justice has occurred.

This is an appropriate case to apply the curative provisions ofsection 686 (1)(b)(iii) of the Criminal Code.

[16] Mr. E.’s appeal is dismissed. [17] The Crown which appeals the granting of an absolute discharge to B.R.E. sets out the following grounds of appeal: “1. That the learned Trial Judge erred in law in granting an absolute discharge in the matter. 2. That the learned Trial Judge further erred in law by failing to order registration of the accused under the provisions of

section 490.12of the Criminal Code of Canada under the Sex Offender Information Registration Act, S.C. 2004 c. 10 as amended. 3. That the learned Trial Judge erred in law in failing to apply retrospectively amendments to the Sex Offender Information RegistrationAct, S.C. 2004 c. 10 as amended.” [18] The standard of review when hearing an appeal from sentencing was set out by Saunders, J.A. in giving the court’s judgment inR. v. Knockwood, 2009 NSCA 98 at paragraph 11: “There is no dispute as to the proper standard of review in this case. This Court’s review of a sentencing order is a highly respectfulone.

We must show great deference whenever we are asked to consider appeals against sentence. Absent an error in principle, a failureto consider a relevant factor, or an over-emphasis of appropriate factors we should only vary a sentence imposed at trial if we areconvinced that the sentence is demonstrably unfit. See for example, R. v. L.M., 2008 SCC 31; R. v. M.(C.A.), (SCC),[1996] 1 S.C.R. 500; R. v. Lonagaphy, 2000 NSCA 136 and R. v. Conway, 2009 NSCA 95.” [19] The Crown submits the trial judge made two errors in his decision.

The first error it is said was the failure to consider what theappropriate range of sentence should be to determine whether the parties were within an appropriate range. The Crown was suggesting acustodial sentence of several months and B.R.E., a discharge pursuant to

section 730 of the Criminal Code which provides: “730.

(1) Where an accused other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which aminimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life the court before whichthe accused appears may, if it considers it to be in the best interest of the accused and not contrary to the public interest, instead ofconvicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation ordermade under subsection 731(2).” [20] The

section requires the court to determine, 1) that a discharge be in the best interests of the accused and, 2) not contrary to thepublic interest when considering a discharge. [21] The Crown submits the trial judge failed to consider whether the granting of a discharge would be contrary to the publicinterest which is a significant error in law fatal to the ultimate sentence. [22] In the sentencing decision the trial judge set out the requirements of section 730(1) and stated the following concerning thepositions of the Crown and B.R.E. as to whether a discharge was contrary to the public interest: “Mr.

E. has made representation to the Court in terms of a discharge being in his best interests. And has made representations to theCourt in terms of a discharge not being contrary to the public interest. The Crown has made submissions and in this case, submits that adischarge would be contrary to the public interest. To put it another way, that the granting of a discharge, or to reword it or put it in yetanother way, that Mr. E. has not met the test of establishing that it would be not contrary to the public interest.

The Crown submits that when one considers that this was a sexual assault, when one considers the fact that this was a sexual assault thatwas committed with respect to Mr. E.’s wife, and that, that is necessarily a spousal or domestic situation that those are all factors which

should lead the Court to conclude that the granting of a discharge would be contrary to the public interest and would be sending an inappropriate message to the public. And certainly would not be a message of general deterrence.” [ 23 ] The trial judge was aware of the necessary factors for granting a discharge and the arguments put forward by the parties concerning a discharge. He considered the factors in reaching his decision. In reviewing the sentencing decision as a whole, I find the judge did not make an error in principle, fail to consider a relevant factor, or over emphasize an appropriate factor.

Considering the facts of this case, I am not convinced the sentence imposed by the trial judge is demonstrably unfit. I cannot say the trial judge erred in granting an absolute discharge. [ 24 ] The Crown concedes if it failed on its first ground of appeal there is no basis for the second and third grounds of appeal. [ 25 ] The Crown ’ s sentence appeal is dismissed. _______________________ Justice C. Richard Coughlan APPENDIX Grounds of appeal The grounds of appeal are as follows: 26. The learned trial judge failed to take into account the internal inconsistencies in the complainant's evidence.

a) E.E. originally testified on June 28, 2010 that she had concluded the water filter was clogged when the water pressure dropped in the bathroom. On August 19, 2010 she changed it to saying she believed I had turned the water off, making it sound like we weren't getting along.

b) E.E. originally testified that I fondled her breasts and then put my mouth on her genitals and then the water sprayed causing me to stop. On August 19, 2010 E.E. testified that the water sprayed in between the breast and genital contact.

c) E.E. testified that she and I were living separate lives since March of 2009, but later testified that she and I watched a movie designed to strengthen our marriage on June 7th, 2009 and that we went to church together shortly after the water filter incident on June 14th, 2009. Watching the movie and going to church together does not appear consistent with living separate lives. As well, E.E. further testified that although she knew I was up and that she was likely to see me, she didn't bother to put clothes on prior to going to the basement and that she stood on a bench near me and proceeded to reach up which resulted in her towel raising and her being exposed.

d) E.E. originally testified on June 19 2010 that the total amount of contact at the water filter was between 30 and 45 seconds. On August 19 when questioned on the amount of time that it took for the defendant to do what she alleged he did to her, E.E. replied that it only took a few seconds. Mr. Hirtle replied that a few seconds is three seconds and asked if that was how long it took to do what she said he did to her. E.E. replied "yes, a few seconds". She further went on to demonstrate how she said no no no and stop stop stop and indicated we could time it.

Listening to the recording of her testimony, E.E. took one second to say no no no, and an additional second to say stop stop stop. She did this upon being questioned about determining the total time of contact at the water filter. When the crown objected to the questioning, my lawyer indicated she had changed her answer from earlier testimony and Judge MacKinnon responded that he did not view the witness as changing her testimony. In his decision he indicated the amount of contact as between 30 and 45 seconds. 2.

The learned trail judge failed to take into account the evidence bearing on the vital time period when the offense allegedly took place.

a) E.E.'s original explanation in her direct testimony that the contact at the water filter was between 30 and 45 seconds does not make sense given how the water filter control works. Given that E.E. testified all contact ended when the water sprayed, and that the water control turns easily by hand in approximately one second until it reaches the spot where the water may spray (1/16 of a turn), the amount of contact could not be as E.E. testified. E.E. had testified that she knew how the water filter control worked. Turning the control to 'off' is the first step in changing the filter.

It was at this initial step that the water sprayed. Given how the filter control works, there is simply not enough time for breasts to be fondled, her yelling stop stop stop, moving into position to perform oral sex on her, followed by her yelling no no no, all within the amount of time it takes to turn the filter control 1/16th of a turn. 3. The learned trial judge failed to take into account the discrepancies between the claimant's evidence and other witnesses.

a) E.E. testified that I lived with my mother for 3 months prior to March of 2009, but she could not recall if it was in 2008 or 2009. This testimony conflicts with my testimony and the physical time line evidence I provided and the testimony of other witnesses including W.E. and B.E. who testified that I spent only one night there, on approximately March 9, 2009.

b) E.E. testified that I was sleeping upstairs since March of 2009. This testimony conflicts with my testimony and the testimony of her daughter E.B.K. whose bedroom was located upstairs. E. testified that I had been sleeping upstairs since for about a month prior to June 14th, 2009, placing it at mid​-May, the same as my testimony. 4. The learned trial judge erred in law pertaining to his rational on intention regarding assault by failing to consider application of de minimus. He failed to acknowledge relevant case law which deals with examining the amount of force applied and the motivation/intention behind the contact.

a) In his Decision he stated that the only intention to be considered was whether I intended to touch, E.E. and not myintention behind the touching. He concluded that since I intended to touch her hands, and she didn't want me to touch her hands, that itwas an assault. Existing case law indicating that assault in a family situation requires a more nuanced

interpretation, including that theremust be a connotation of anger, revengefulness, rudeness, or insolence, or at least some like behavior to the touching performed before itcan be said that there is a "force" which completes the legal definition of assault. E.E. testified that I was not mad.

i) Case law: R.C.Dube, 2001 Can LII 273 (QC C.Q.) "De minimus does not apply, in that the least touching in anger wouldbe an assault, and that is clearly what I have found" ii) Case law: R. c. Freedman, 2006 QCCQ 1855 [28] The question was extensively examined in R. v. Matsuba, a case involving an art schoolteacher and a student aged fourteen.Apparently, the accused's hand would have touched the student between her ankle and her knee, without sexual overtones, during aregular class when he approach to check on the assignment he gave her.

The Court did not find that the prosecution had proved its case.Nevertheless, and relying on R. v. Burden 114], Jones Prov. Ct. J. went on: It is not simply enough that there be an intentional deliberate touching, without consent, but it is necessary. in order to conclude that theparticular touching constitutes "force" within the meaning of the statutory provision, that there be a connotation of anger. revengefulness.rudeness, or insolence, or at least some like behaviour to the touching performed before it can be said that there is the "force" whichcompletes the legal definition of assault.

It seems to me that this must be so, otherwise any deliberate application of physical contact thatexhibited nothing more than the general intent to intentionally touch the victim without the victim's consent would be actionable at theinstance of the criminal law ..." [30] The case of R. v. Phillips is also instructive and illustrative. Philips was charged with assaulting a police officer. He was trying to get into his office in a building being picketed. He had called thepolice. An animated discussion followed between one of the officer arriving on the scene and Phillips.

At one point, the officer turnedaway from Phillips when the latter denounced the officer as "another union bum 'protecting the strikers". Phillips then grabbed theofficer's wrist and poked his fingers at the officer's chest, telling him that if the officer would not help him, he should get someone whowould. Brien Prov. Ct. J. held that the de minimis principle could apply depending on the circumstances of the case. He found that thegrabbing of the wrist was done in a motion to indicate that he did not want the officer to leave. It was trivial and could not constitute anassault.

However, when the accused poked the officer in the chest, it was voluntary touching done in anger, it was not a friendly contactnor was it done with consent express or implied. Although minor, it could not be considered trivial [17]. iii) Case law: R. v. Jobidon, (SCC), [1991] 2 SCR 714 Assault has been given a very encompassing definition in s. 265. It arises whenever a person intentionally applies force to a person"directly or indirectly", without the other's consent. The definition says nothing about the degree of harm which must be sustained. Nordoes it refer to the motives for the touching.

If taken at face value, this formulation would mean that the most trivial intended touchingwould constitute assault. As just one of many possible examples, a father would assault his daughter if he attempted to place a scarfaround her neck to protect her from the cold but she did not consent to that touching, thinking the scarf ugly or undesirable. (Even anargument for implied consent would not seem to apply in a case like this.) That absurd consequence could not have been intended byParliament.

Rather its intention must have been for the courts to explain the content of the offence, incrementally and over the course oftime. 5. The learned trial judge erred by permitting the complainant to be present in the courtroom while there was a ban on witnesses and then return to give further testimony on two occasions.

a) On Aril 8, 2011 E.E. was present in the courtroom for the duration of my testifying in my 276 application. She testifiedlater that day in the 276 application when the crown was asked if he wanted to reopen his case.

b) On June 3, 2011 E.E. was present in the courtroom for the duration of the day. At the start of the day, when the judgequestioned why she was in the courtroom, the crown indicated she was there upon his request, and she was allowed to stay. After mytestimony concluded, E.E. was questioned further on rebuttal. 6. The learned trial judge erred by permitting the crown to reopen his case, when there was no legal precedent supporting that decision, as there was nothing that happened since the crown has closed it case which areasonable person could not have forseen.

a) On January 28, 2011 while discussing the possibility of calling E.E. during the 276 application, the Crown indicated "I do recallshe (E.E.) did give some evidence on the nature of the relationship between the parties, which would be pertained to this. So I'll simplyadopt that evidence in my response." He further went on to indicate there would be no redirect testimony. E.E. was called into thecourtroom and advised that she was examined in chief and cross examined, and that there was not going to be any further evidence fromher. This was followed by the Crown closing.

b) During the crown's cross examination of myself, he asked me if I had heard E.E.'s evidence on the other days that no sexual contacttook place at all. I replied that I did not hear that, but that I had heard her say I was sleeping upstairs. It was only after my testimony thatcrown became interested in asking E.E. additional questions. The content of my testimony which spurred the crown to want to askadditional questions was not something he could not have forseen, as it was contained in E.E.'s previous testimony. The crown reopeningits case at this point is at the 3rd and most difficult stage to be allowed to reopen its case.

i) Case law: R. v. P. (M.B.), (SCC), [1994] 1 SCR 555 Lastly, in the third phase after the Crown has closed its case and the defence has started to answer the case against it (or, as in much ofthe case law, the defence has actually closed its case), a court's discretion is very restricted and is far less likely to be exercised in favourof the Crown. It will only be in the narrowest of circumstances that the Crown will be permitted to reopen its case.

Traditionally, an eximproviso limitation was said to apply to this stage of the proceeding; that is, the Crown was only allowed to reopen if some matter arosewhich no human ingenuity could have foreseen. At this late stage, the question of what "justice" requires will be directed much more toprotecting the interests of the accused than to serving the often wider societal interests represented by the Crown, the latter being a morepressing consideration at the first and, to a lesser extent, the second phase. 7.

The learned trial judge erred by not receiving evidence that the claimant had explained to community services in an adoption application dated December 17, 2009 that she had overreacted due to a previous abusiverelationship and contacted police from an incident, between herself and B.R.E., that was mitigated in a court of law in 2008 where he wasfound not guilty.

a) E.E. indicating she had a history of over-reacting due to a previous abusive relationship, is relevant towards the reasonsbehind her actions on June 14th, 2009.

b) Giving a different story to police and in court and then providing a different story to community services is also relevanttowards E.E.'s lack of credibility. 8. The learned trial judge erred in its 486 ruling by accepting evidence from the crown that he had asked E.E. outside of court if she would be able to testify if the defendant asked her questions and that her response was no.This was all the evidence, presumably from E.E., they offered. I presented case law evidence that more was required, according to notedcase law before a 486 application should be approved.

Judge MacKinnon said that he could see a wife being uncomfortable with beingasked questions of a sexual nature by her estranged husband and granted the 486 application. Provisions of 486 are based upon necessity,and not upon a witness being uncomfortable. Asking a witness a single closed ended suggestive question outside of court, and using thatanswer as the single piece of evidence offered, is creating a blanket exclusion that all a spouse has to do is say no to a close endedquestion and the defendant will not be allowed to cross examine them.

i) Case law R. v. Tehrankari, (ON SC) [9] The history of the relevant provisions evidences an intention by Parliament to protect vulnerable witnesses, particularly youngcomplainants in sexualassault cases and persons with disabilities: see R. v. Levogiannis, (S.C.C.), [1993] 4 S.C.R. 475.However, I do not read the amended sections as establishing a carte blanche for ordering counsel to cross-examine witnesses based solelyon the fact that a witness is nervous or uncomfortable.

Experience shows that many persons charged with sexual assault are subjected tocross-examination by highly aggressive defence counsel, and no doubt the complainants involved would prefer not to be subjected tosuch cross​ examination.

The preference of a witness cannot drive the answer to the question in issue. [15] The Manitoba Court of Appeal reversed the decision and held that before an order could be made under s. 486(2.1), the judge mustbe of the opinion that the exclusion of the witness is necessary in order to obtain a full and candid account of her allegations, that the trialjudge was entitled to hold a voir dire to ascertain the facts on which his opinion would be formed, but the Crown should not have beenpermitted to ask the non-expert witnesses their opinions on the issue.

The court also found the trial judge erred in requiring that theaccused cross-examine the complainant through an intermediary. The Court stated at p, 24: The right of cross-examination is one of fundamental importance. It is a right not only to frame questions, but also to phrase and expressthem in the manner of the examiner's choice. The way in which a question is asked is sometimes as important as its contents. Thediminution of the right requires, at least, an implied statutory provision restricting it. [18] In R. v.

Vescio, (S.C.C.), [1949] S.C.R. 139, Taschereau J. stated: It is a fundamental principle of our criminal law that the choice of counsel is the choice of the accused himself, that no person chargedwith a criminal offence can have counsel forced upon him against his will, and that it is the paramount right of the accused to make hisown case to the jury if he so wishes, instead of having it made for him by counsel: R. v.

Woodward, [1944] A.E.R. 159. [19] Weighing the unfettered right of the accused to defend himself against the discretionary order that I might make to accommodate awitness, I believe I must be satisfied on a balance of probabilities that a full and candid account would be unachievable should theaccused cross-examine an individual witness. The evidence on a voir dire must establish the "necessity" of making such an order.

I amnot prepared to hold that expert behavioural evidence would be required in every case, but at a minimum there must be reliable,trustworthy evidence from sources with intimate knowledge of the individual witness so that the court can be satisfied on a balance ofprobabilities that a full and candid account could not be achieved in the event the witnesses were subject to cross-examination by theaccused. ii) case law R. v.

C.D., (ON S.C.) 20] It is also important to remember that the test in s. 486.2 is that the order must be "necessary to obtain a full and candid account fromthe witness of the acts complained of'. The threshold that must be met is one of necessity. The

section does not provide that the order canbe given because it would "facilitate" obtaining that full and candid account nor does it authorize an order being made because it mightbe the preferable or more comfortable or easier way of obtaining that account. The order must be "necessary", which is defined in theOxford Dictionary of English (2nd ed.; revised) as "needed to be done, achieved, or present; essential". 9. The learned trial judge erred in allowing rebuttal evidence from the claimant, on information contained within my affidavit, pertaining to the day before the alleged assaults.

They did not offer direct testimony on thistopic despite knowing what my evidence was going to be. Rebuttal evidence is for subject matter that the crown could not havereasonably anticipated.

i) case law: R. v. Lawes, 1996 ABCA 335 [35] Krause, supra at 474 also describes the general rule on adducing evidence in rebuttal: "The plaintiff or the Crown may be allowed to call evidence in rebuttal after completion of the defence case, where the defence hasraised some new matter or defence which the Crown has had no opportunity to deal with and which the Crown or the plaintiff could notreasonably have anticipated. But rebuttal will not be permitted regarding matters which merely confirm or reinforce earlier evidenceadduced in the Crown's case which could have been brought before the defence was made.

It will be permitted only when it isnecessary to insure that at the end of the day each party will have had an equal opportunity to hear and respond to the full submissions ofthe other." [37] Here, in my opinion, the rebuttal evidence was both within the possession of the Crown and clearly relevant to the alibi defence. Thelearned trial judge, mindful of the test in Krause, supra, characterized the proposed rebuttal evidence as concerning "an issue essentialfor the determination of the case". The Crown had every reason to anticipate its relevance and every chance to deal with it in its case inchief.

That is because the theory of the defence was made "painfully" clear. The Crown put in the alibi defence as part of its case in chiefand then deliberately chose to attempt to show that it was false. The defence maintained throughout that the Crown witnesses, includingYolanda Ruglass, were not telling the truth. The Crown was not taken by surprise and had every opportunity to address both the alibidefence and the veracity of Yolanda Ruglass as part of its case in chief. On the authority of Krause, supra, the rebuttal evidence shouldnot have been allowed because it permitted the Crown to unfairly split its case. 3.

The learned trial judge failed to consider the post alleged assault behaviors of the complainant were not consistent with someone having been assaulted.

a) E.E. testified she laughed when the water sprayed and stayed and watched me stop the water from spraying.

b) E.E. testified that after the water filter incident that she E. and I all went to church together. E.E.'s daughter E. testified that E.E. cameback in the house to see if I was coming. 4. The learned trial judge erred in his reasoning why he did not consider the defendant to be credible.

a) In his initial reasons why he rejected my evidence the judge indicated that he thought I wanted to reconcile with E.E., andthat I believed if I was found guilty there would be no chance of saving the marriage, and that he hence concluded I lied in an effort todeceive the court.

b) His premise is unfounded. I did not indicate during the trial that I was still interested in reconciliation.

c) Even if the premise was valid, his conclusion does not follow logically from his premises. There is nothing to indicate thatE.E. and I would be more likely to reconcile if! was found not guilty, or that I held such a belief.

d) The judge never gave any other rational as to why he thought I was not credible. He never cited inconsistencies in mytestimony.

e) The judge erred by concluding that the complainant was credible because much of her testimony agreed with the testimonyof the defendant, but didn't afford me the same consideration. f)

5. The learned trail judge erred in his

interpretation of R. v. WD.

a) Judge MacKinnon indicated in his decision that "Based on the evidence that I accept, and again referring to the test of WD,as was explained in R versus BSB, I reject the evidence of Mr. E.. Mr. E.'s evidence does not raise a reasonable doubt based on theevidence that I accept, that being the evidence of E.E.."

b) Judge MacKinnon failed to acknowledge that the evidence of the accused, must raise a reasonable doubt if it is internallyconsistent and "believable". He erred in his reasoning why the accused was not credible (as contained in point 11 above).

c) Judge MacKinnon's given rational seems to combine the 2nd and 3rd step from WD, in that he forms the basis for notfinding reasonable doubt from the accused testimony because he believed the testimony of the complainant. He does not do justice toeither category. xiii) case law: R. v. B.S.B., 2008 BCSC 917 First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. xiv) case law R. v. Y.M., (ON CA) [35] Here, the trial judge did not expressly address the second step or middle ground in W.(D.). As she had on the Sheppard submission,the

summary conviction appeal court judge concluded that the trial judge's failure to do so was not fatal. Again, I take a different view.The trial judge summarily rejected the appellant's denials solely, apparently, because he accepted the complainant's evidence. However,this is not a case where the mere acceptance of the complainant's evidence inevitably meant that the accused had to be found guilty. AndI am not satisfied that the trial judge considered whether the defence evidence, though not accepted, nonetheless raised a reasonabledoubt. xv) case law: R. v.

E.M.W, 2009 NSPC 33 6) The W. (D.) (supra) jury instruction provides that if the evidence of the accused person is believed he or she should beacquitted. Even if the evidence of the accused does not raise such a reasonable doubt, the person must be acquitted if a reasonable doubtis raised by the other evidence. 9) The first is the view that the evidence of the accused, must raise a reasonable doubt if it is internally consistent and "believable". It cannot fail to raise a reasonable doubt only because it isinconsistent with the evidence of the complainant.